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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Point-Counterpoint on Election Activities of Churches and Charities

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August 24, 2004

Director's Note: For this Weekly Comment, we are using a new format: a "Point-Counterpoint" exchange of views by two Moritz professors. The topic is the requirement that churches and other charities that are tax-exempt under section 501(c)(3) of the Internal Revenue Code refrain from participating in election campaigns on behalf of, or in opposition to, any candidate. (Background information on this topic is available in Section 3.5 of the e-Book on Election Law.) Our experts are Allan Samansky and Donald Tobin, and their difference of opinion illustrates the difficulty of developing settled rules in this area of law.

Point: Allan Samansky

In the current presidential campaign, as in prior ones, the role of churches and other religious organizations in supporting or opposing particular candidates has aroused strong and conflicting opinions. My view is that a strict and absolute prohibition of campaign activity by religious institutions that supports or opposes candidates is neither desirable nor possible. Because the Internal Revenue Service and others frequently give lip service to an impossible interpretation of the "no intervention" in political campaigns rule, we do not have clear and sensible guidelines, but instead confusing rules that are often honored in the breach.

The law seems clear. To be eligible to receive deductible contributions and qualify for tax exemption, an organization must not participate in any political campaign "on behalf of (or in opposition) to any candidate." The ban is absolute, in contrast to the prohibition against lobbying by exempt organizations that applies only when a "substantial part" of the organization's activities are so engaged. But a statute can always be interpreted to take into account relevant circumstances. The prohibition against campaigning was added in 1954 as a result of an amendment offered on the floor of the Senate by then Senator Lyndon Johnson. As a result, there is little legislative history for this provision and, in particular, no indication that Senator Johnson or Congress was particularly concerned about churches, as opposed to other exempt organizations.

Religion instructs us not only about our relationship to God, but also our relationship to fellow human beings. Every action a person takes is potentially affected by her system of beliefs and moral structure. Religion has played an important and generally constructive role in many of our nation's great controversies, such as ending slavery and civil rights for all citizens, and it is both desirable and inevitable that it continue to do so. Most of our important political controversies have a significant moral component, and religious leaders and their followers must determine the appropriate role of their religion in influencing individual political views.

Of course, when religious leaders instruct their members about the moral component of public issues, there may be implications about the suitability of various candidates for public office. I believe the leaders should be free to point out these implications. For example, I do not find that the recent and controversial pastoral letter of Bishop Michael Sheridan of the Colorado Springs diocese poses difficult tax issues. (Needless to say, I am not taking any position on the validity of his views or its implications for the Catholic Church.) He forcefully stated that Catholics who vote for candidates that take certain positions "place themselves outside the full communion of the Church." He has a right, and perhaps religious obligation, to state his views. Of course, others may vehemently disagree with his pronouncement, but it would not be appropriate for the Catholic Church or its contributors to lose tax benefits because a Bishop has stated his views on what he sees as a moral issue, even though he is appraising the religious consequences of voting in a particular way.

Requiring Bishop Sheridan to publicize his views only in an unofficial capacity, as some have suggested, would accomplish nothing. A religious leader does not lose his religious authority or stature when the clock strikes a certain hour or he steps out of a building. Similarly, it is difficult to see what would be accomplished by requiring the Catholic Church to form an affiliated organization that would not qualify under section 501(c)(3) of the Internal Revenue Code and thus would not be subject to the "no intervention" rule. The cost of writing and distributing the pastoral letter, which was apparently printed in a newsletter and posted on the Web, was minor. The religious authority of the author and of the Catholic Church made it significant.

To retain their preferred tax status, religious institutions should not have carte blanche to campaign or collect funds for political candidates. I do not have the space here to work out and rationalize the implications of my position. I will only mention that I think that the appellate court was correct in revoking the tax exemption of the church in Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000), for paying for advertisements in two daily newspapers in opposition to the candidacy of President Clinton. The crucial fact in that case was that the message was not directed primarily to church members but to the public. On the other hand, churches and religious institutions are fulfilling their basic mission when they instruct their members on issues of public policy.

Counterpoint: Donald Tobin

A Bishop in the Catholic Church recently implied that Catholics will "jeopardize their salvation" if they vote for Kerry. The Reverend Jerry Falwell recently endorsed President Bush on what appears to be a Church run website. The head of the NAACP called for "regime change." A survey done about the 2000 election indicated that approximately 15 percent of the African American pastors surveyed endorsed candidates (historically Democratic ones) from the pulpit. And this is just the conduct that has come to light. All this political activity is conducted by religious institutions and charities despite the fact that they are prohibited by law from intervening in an election. If these actions are not intervention in a political campaign, then almost nothing is.

The intervention in political campaigns by religious institutions and other 501(c)(3) organizations, not only violates the law, but poses great risks to both the charity and the election system. Under our tax system, religious institutions and other charities receive significant tax benefits. Most importantly, contributions to churches are deductible by the person making the donation. This deduction acts as a subsidy to the organization. Thus, as taxpayers, we are all subsidizing these various organizations. One of the reasons that we provide this subsidy is religious organizations and charities are seen as contributing to the good of society as a whole. Even if we are not a member of the particular religion receiving the subsidy, we believe that society as a whole is better off with vibrant religious and charitable organizations.

In exchange for this subsidy, the law requires that charitable organizations, including religious ones, refrain from intervening in an election. Unlike religious or charitable work, promoting a particular candidate for office does not promote general welfare. If as a society we want public funding of political campaigns, we should do so, but we should not allow religion to be a funnel by which tax-deductible donations to charity can be made into tax-deductible political contributions.

The prohibition on intervention in elections not only protects society at large, but also protects religious institutions. If religious organizations are allowed to endorse candidates, tremendous pressure will be put on them to do just that. In a country that so values religious freedom, political pressure on religious institutions to endorse candidates is very worrisome. Religious intuitions may also fear that they will suffer reprisals for failing to endorse the winning candidate.

Allowing religious organizations to engage in electioneering activities may also put the very subsidy they receive at risk. As a society, we may be less willing to support a charitable deduction if we know that the subsidy is being used to attack political candidates we like, or to promote ones we abhor. It is one thing to provide a subsidy to religious institutions generally, and another to provide a subsidy to a religious organization that is working hard for a candidate you oppose.

But what if a religious institution believes that political beliefs and religious ones are inextricably intertwined. For example, if the Catholic Bishop believes that parishioners that vote for Kerry risk salvation, doesn't he have a moral and religious obligation to tell them so? He may. And if his religious calling so requires, then he, and his church, can decide to forgo the subsidy provided to it by the government. If a religious institution or a charity wants to engage in political advocacy, it may do so; it just may not do so on the public dole.

Any alternative approach will lead to a "gaming" of the campaign finance system at taxpayer expense. If religious intuitions are allowed to use tax-deductible contributions to influence elections, I can see two new religions on the horizon – The Church of Bush and The Church of Kerry.